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The Ministry of Education has 60 days to establish the Education Standards and Quality Assurance Council (ESQAC).

In a ruling delivered yesterday, High Court Judge Lawrence Mugambi further ordered the ministry to appoint relevant officers to the council as required by section 64 of the Basic Education Act.

The judge warned that the failure of the ministry to establish the council as required by the Act was an affront to the rule of law and principles of governance.

“Having reached this finding, the reliefs that commend themselves to this Petition are that a declaration is hereby issued that the 1st Respondent (Cabinet Secretary Ministry of Education) defaulted in establishing the Education Standards and Quality Assurance Council against the express provisions of Section 64 of the Basic Education Act,” the judge ruled.

The judge further warned that allowing the Executive to act as it wishes in the circumstances amounted to diminishing the authority of the law and to that extent that of Parliament against the Constitutional doctrine of separation of powers.

Education standards

He dismissed the argument advanced by the ministry that Dr Christopher Galgalo Ali, who filed the case, did not demonstrate how educational standards have fallen due to the non-establishment of the ESQAC Council. The court said the argument was untenable as principally what was in question was the arbitrary refusal to implement an express statutory provision for which it has no discretion to exercise.

 “Besides, it will be denying the children the benefit of getting quality education standards which is the objective behind that provision in the Basic Education Act that is geared toward ensuring that quality education standards are maintained through this structure,” said the judge.

Statutory intentions

Ali, a former head of the council moved to court in 2022 arguing that the ministry was in breach of Sections 64 and 65 of the Basic Education Act due to its failure to give effect to the statutory intention of a functional and operational council as stipulated by law.

Dr Ali said the continued non-operationalisation of the ESQAC and the non-appointment of the quality assurance officers amounts to psychological torture on the teachers and students, especially with the establishment of the Competence Based Curriculum (CBC).

He contended that the Ministry’s omission was in violation of the constitutional right to quality education and dignity.

“Moreover, the continued non-operationalization of the Council violates the right against psychological torture occasioned on the teachers and students. This is because the curriculum being utilized lacks assessment of quality assurance as required by law”, Ali said in court documents.

“The law did not give the respondents the latitude not to act or delay. To allow the executive or respondents to delay in the circumstances is to diminish the authority of the law. It would be denying children the benefit of quality education standards, which is the objective behind the standards,” said Justice Mugambi.

Dr Galgalo’s lawyer, Harrison Kinyanjui, argued that access to education is not enough; the government ought to ensure that learners have quality teachers and educational materials.

“This lack of quality assurance in turn creates an endless curriculum learning free fall, especially those who are now faced with a new untested CBC program,” said Kinyanjui.

According to court documents filed before the High Court judge, Dr Galgalo was appointed by former minister Pro. Jacob Kaimenyi to head SQAC in 2019. His term ought to end in 2023.

He claimed that the appointment was communicated to the Principal Secretary for early learning and basic education.

The judge heard that the appointment has not been varied or revoked to date.

However, he argued that he held an office that was not operational. Dr Galgalo further claimed that he wrote to the late CS Prof George Magoha seeking his intervention and chatting about the agency’s future but has never received a response.

His lawyer, Kinyanjui, told the court that he then wrote to the former head of public service, Dr Joseph Kinyua, on the same, but again, he did not receive a response. He claimed that the Department of Education receives more than Sh40 million annually for quality assurance in basic education. However, according to him, the quality of education has been rapidly declining.

“There is, therefore, a precipitous danger of the quality of education in Kenya dropping to an extremely horrendous level without the quality assurance council meeting the foregoing mandate. The first respondent’s actions and omissions pleaded herein constitute a violation of the petitioner and the affected Kenyan children’s right to human dignity,” argued Galgalo.